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HomeMy WebLinkAbout2026-01-02 Appellants 2nd Amended Petition (PL-BOA-2025-000119) DeVera, Ashley From: Claudia Rohr <crohr4@gmail.com> Sent: Friday, January 2, 2026 5:57 PM To: Planning Board of Appeals; Richard Standke; Wan, Sylvia A; Claudia Rohr; Campbell, Jean K; Darrow, Jeffrey W. Subject: PL-BOA-2025-000119, SECOND AMENDED PETITION Attachments: 2026.01.02 SECOND AMENDED PETITION.pdf Attached, please find the Second Amended Petition in case No. PL-BOA-2025-000119. This Second Amended Petition stands alone and replaces all previous versions of the petition. It has been filed on EPIC. Claudia Rohr 808640-5976 Board of Appeals case No. Claudia Rohr, PL-BOA-2025-000119 SECOND AMENDED PETITION ON APPEAL (originally filed May 1, 2025) [General Petition for Appeal of a Decision by the Planning Director in PL-SAA-2025-000280] This Second Amended Petition stands alone and replaces all previous petitions. (1) The name, address, email, and telephone number of the appellant. CLAUDIA ROHR 369 Nene St. Hilo, Hawai'i 96720 Phone: (808) 640-5976 crohr4@gmail.com (2) A description of the property involved in the appeal, including the tax map key number of the property, and the appellant's interest in the property. The property involved is TMK (3)2-1-18-13, 14 Oeoe Street, Hilo, Hawai'i 96720. The owners are Richard and Deborah Standke. My east property boundary, TMK (3)-2-1-018-005, is 210 feet from the west property boundary of TMK 3-2-1-18-13. I rely on Oeoe Street to take my walks down to Leleiwi and Richardson's beaches, to access my driveway at 369 Nene Street, and to receive emergency services, including fire trucks that hook up to a fire hydrant on the corner of Oeoe Street and Kalanianaole Street. Richard and Deborah Standke have non-conforming use certificates to operate non-hosted short-term vacation rentals (STVR) at 14 Oeoe Street (four bedrooms for 12-persons, four parking spaces) and 16 Oeoe Street (five bedrooms for 16 persons, seven stacked parking spaces), with vehicles that back out onto Oeoe Street or back into side-by-side driveways because there is not enough off-street parking area to turn round. The Standkes advertise their transient accommodation rentals together on their own website and suggest you book more than one. https://hilovacationhomes.com/ In this case, adding a 240 SF lanai and a 240 SF covered deck will expand the property's capacity to hold gatherings and parties, drawing even more vehicles to Oeoe Street, with cumulative and significant adverse effects on the surrounding 1 neighborhood, requiring a SMA permit procedure and review in front of the Planning Commission. F � , • ♦ - M ' i"wok':e�� **Oh +,. .64 au,. 4 1' Oeoe Street, Hilo, looking seaward towards Kalanianaole Street. The silver van is backing out of the driveway for 14 Oeoe Street on the left. 2 �unur mi sn ,•' wv 410,441. r 4, , -14 • ■ Oeoe Street, Hilo, looking mauka towards Nene Street. The driveway for 14 Oeoe Street is on the right. (3) A plain statement of the nature of the appeal and the relief requested. This is an appeal of the Planning Director's April 11, 2025 letter decision to exempt the development described in PL-SAA-2025-000280 from SMA review. Exhibit A. Relief Requested: Reverse the Planning Director's decision to exempt the project and Remand PL-SAA 2025-000280 with appropriate instructions for SMA permit procedures under PC Rule 9- 11, based upon the preponderance of evidence, that: (1) The director erred in his decision and it is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; (2) The decision violated the Code and other applicable laws; and (3) The decision was characterized by an abuse of discretion or clearly unwarranted exercise of discretion. (4) A statement explaining: (A) How the decision appealed from violates the law: 3 The laws and rules that were violated are emphasized in bold and underlined: 1. By failing to address and enforce the Landowners' violations of the zoning code and other State laws at the SMA review stage, the Planning Director violated the Special Management Area policy for managing development: HRS §205A-2(c)(7)(A): "Use, implement, and enforce existing law effectively to the maximum extent possible in managing present and future coastal zone development." For example: a. There is no parking layout that shows individually accessible parking spaces reached from a driveway of proper design and width to allow for passage of vehicles and necessary turning movements, in violation of the parking standards for STVRs, Zoning code, Sections 25-4-16(c)(2)(C), (c)(5), and Section 25-4-54. b. The Planning Director erred by treating the subject property as a single-family residence. There was an amendment to HRS §46-4(a) that the Planning Director has failed to consider in his SMA assessment. In granting a SMA exemption under Planning Commission Rule 9-4(i)(2)(A), and HRS §205A- 22(2)(A), where the term ""development" does not include: "Construction or reconstruction of a single-family residence ...", the Planning Director violated HRS §46-4(a): "...uses that include the furnishing or offering of transient accommodations shall not be considered residential or agricultural uses..." (emphasis added in bold and italics) c. Similarly, in granting a SMA exemption under Planning Commission Rule 9-4(i)(2)(0), and HRS §205A-22(2)(N), where the term "development" does not include: "Structural and non- structural improvements to existing single-family residences, where otherwise permissible", the Planning Director violated HRS §46-4(a): "...uses that include the furnishing or offering of transient accommodations shall not be considered residential or agricultural uses..." (emphasis added in bold and italics) 2. By violating the Special Management Area policy for managing development, the Planning Director violated the Special management area guidelines: HRS §205A-26(2): 4 No development shall be approved unless the authority has first found: (A) That the development will not have any significant adverse environmental or ecological effect, except as any adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interests. Those adverse effects shall include but not be limited to the potential cumulative impact of individual developments, each of which taken by itself might not have a significant adverse effect, and the elimination of planning options; (B) That the development is consistent with the objectives, policies, and special management area guidelines of this chapter and any guidelines enacted by the legislature; (C) That the development is consistent with the county general plan, community plan, and zoning; provided that a finding of consistency shall not preclude concurrent processing where a general plan, community plan, or zoning amendment may also be required. 3. The proposed addition of a covered deck and a new enclosed stairway will increase the building footprint and will occupy a greater area of land than what is existing. In granting an exemption under HRS §205A-22(2)(N), ("Structural and nonstructural improvements to existing single-family residences, where otherwise permissible;"), the Planning Director violated the SMA guideline requiring consistency with the zoning, HRS §205A-26(2)(C) and Zoning Code, Section 25-4-61 Continuance of nonconforming uses of land and buildings: (a) Any nonconforming use of land or use of a building may continue to the extent it existed on December 7, 1996 or at the time of the adoption of any amendments to this chapter, provided that a nonconforming use may be enlarged within the building it occupies, but shall not be enlarged or increased to occupy a greater area of land, nor shall it or the portion of the building housing it be moved in whole or in part to any other portion of the building site occupied by such nonconforming use, except as provided in this division. (emphasis added in bold and italics) 5 4. The lack of an off-street parking plan at the subject property creates ingress/egress and on-street parking issues causing dangerous road conditions with cumulative and significantly adverse effects on the social welfare, activities and walkability of the community. PL-SAA-2025-000280 application was incomplete. It did not follow the instructions and was not accompanied by the required site plan: A site plan of the subject property, drawn to scale, showing all existing and proposed structures, uses and activities. Information such as the extent of any land alteration grading) activities and the location of a cliff or other distinctive land features should be shown on the plans. Photographs of the subject property and the project site showing existing conditions are not required but would greatly facilitate the review process. The building plans submitted with PL-SAA-2025-000280 application has an insufficient plot plan and, by accepting it as complete, the Planning Director violated Planning Commission Rule 9-10 Assessment (b)(2): "A plot plan of the property, drawn to scale, with all proposed and existing structures shown thereon and any other information necessary to a proper determination relative to the specific request." 5. HRS §205A-22(2) definitions provides the caveat: "...provided that whenever the authority finds that any excluded use, activity, or operation may have a cumulative impact, or a significant environmental or ecological effect on a special management area, that use, activity, or operation shall be defined as "development" for the purpose of this part." The Planning Director approved an exemption for development that increases the capacity of the transient accommodation to hold gatherings and parties at 14 Oeoe Street. On-street parking and egress issues at 14 Oeoe Street are directly traceable to the transient accommodation guests. The guests often arrive in large groups that drive in separate vehicles. The vehicles backing into 14 Oeoe Street or into the driveway cause cumulative impact and/or significant adverse effects on the surrounding community— blocking vehicles turning onto Oeoe Street from Kalaianaole Street, creating tsunami evacuation congestion, diminished fire protection and access to other emergency services; and unsafe conditions for bicyclists and pedestrians. Therefore, the Planning Director's "SMA exemption" violates HRS §205A- 22(2). 6 6. By failing to require a SMA permit procedure under PC Rule 9-11, the Planning Director violated Planning Commission Rules of Practice and Procedure 9-10(c)(2) and 9-10(h)(2), (3), (4), and (10).: PC Rule 9-10(c): The Director shall assess the proposed use, activity or operation upon the applicant's compliance with Section 9-10B based on the following criteria: (1) The valuation of the proposed use, activity or operation. (2) The potential effects and significance of each specific circumstance of the use, activity or operation, according to the criteria of significant adverse effect established by Section 9- 10H. (emphasis added) PC Rule 9-10 Assessment, part (h) Criteria of Significant Adverse Effect, applies as follows: (2) curtails the range of beneficial uses of the environment;' (3) conflicts with the long-term environmental policies or goals of the General Plan2 or the State Plana; ' Nene St. and its side streets is widely used as a pedestrian travel way by the residents of Leleiwi Neighborhood and as a pedestrian, scooter, and electric bicycle connection between Kings Landing Homestead lots, Keaukaha tract II and Keaukaha Tract I. Residents of the greater Keaukaha Community use Nene St. to walk or bike to and from the beach parks or local schools or fishing grounds as a safe travel way away from vehicular traffic and cars parked in the paved road shoulder on Kalanianaole Street. 2 2005 General Plan, 2.2 Goals. "development and improvement shall be in balance with the physical, social, and cultural environments of the Island of Hawaii;" 2005 General Plan, 4.2 Goals. "the most desirable use of land within the County that achieves an ecological balance providing residents and visitors the quality of life and an environment in which the natural resources of the island are viable and sustainable;" 3 §226-4 State goals. "In order to ensure, for present and future generations, those elements of choice and mobility that ensure that individuals and groups may approach their desired levels of self-reliance and self-determination, it shall be the goal of the State to achieve: (2) A desired physical environment, characterized by 7 (4) significantly affects the economic or social welfare and activities of the community, County or State; [See, Fn. 1.] (10) is contrary to the objectives and policies of the Coastal Zone Management Program and the Special Management Area Guidelines of Chapter 205A, HRS.4 7. The Planning Director violated the Special Management Area policy for managing development: HRS §205A-2(c)(7)(A), and the Special Management Area guideline requiring consistency with the zoning: HRS §205A-26(2)(C) by approving development in the SMA with a business model that is inconsistent with Zoning code, Section 25-1-5, and PC Rule 9-4(u). Under the Zoning code, Section 25-1-5 Definitions and Planning Department Rules of Practice and Procedure, Rule 23-3 Definitions: "Dwelling unit" means one or more rooms designed for or containing or used as the complete facilities for the cooking, sleeping and living area of a single-family only and occupied by no more than one family and containing a single kitchen. "Family" means an individual or two or more persons related by blood, state sanctioned adoption, foster parentage, guardianship or marriage, or a group of not more than five unrelated persons (excluding servants), occupying a dwelling unit. "Short-Term Vacation Rental" (STVR) means a dwelling unit of which the owner or operator does not reside on the building site, beauty, cleanliness, quiet, stable natural systems, and uniqueness, that enhances the mental and physical well-being of the people." §226-8 Objective and policies for the economy—visitor industry. "(b) To achieve the visitor industry objective, it shall be the policy of the State to: (2) Ensure that visitor industry activities are in keeping with the social, economic, and physical needs and aspirations of Hawaii's people; (13) Minimize negative economic, environmental, and social impacts to the State;" 4 See, Special management area guideline, HRS §205A-26(2)(C) No development shall be approved unless consistent with the county zoning and general plan. 8 that has no more than five bedrooms for rent on the building site and is rented for a period of thirty consecutive days or less. Under PC Rule 9-4(u), definitions: "Single-Family Residence" means a detached building designed for and/or used as the complete facility for cooking, sleeping and living area of a single family only and occupied by no more than one family. Single family residences may include uses or structures normally considered accessory to the single family facilities provided that any such uses or structures are situated on the same lot or building site and are in compliance with all requirements of any county or state regulation, statute, or ordinance. A single family shall include all persons living in a dwelling related by blood, marriage or by adoption or a group comprised of not more than five persons not related by blood, marriage or by adoption. (emphasis added). The Standkes rent out their 14 Oeoe Street "beach house" to groups of 12 individuals using their own website and an independent, AI driven, online registration platform which does not require or verify that the group reservation is for a single family. 8. By allowing the construction project to proceed without any effort to enforce the County's short-term vacation rental law during the SMA review stage, the Planning Director violated zoning code, Sections 25- 2-35, and 25-4-16.3, and Planning Department Rule 23-16(a):, which reads: STVRs in violation of HCC Chapter 25, any rule adopted thereunder, or any permit or variance issued pursuant thereto, shall be subject to enforcement pursuant to HCC Section 25-2- 35. (4) A statement explaining: (B) How the decision appealed from is clearly erroneous: The Planning Director's decision is clearly erroneous because PC Rule 9 and HRS Section 205A-22(2), exclusions from the definition of"development", must now be read in pari materia with Act 17 (May 3, 2024) changes to HRS § 46-4(a). The Planning Director wrongfully approved the SMA exemption for SMA use permit assessment application No. PL-SAA-2025-000280 after the May 3, 2024 effective date of Act 17. 9 Specifically, the Director erroneously overlooked the following facts: (1) The building and/or the premises used for transient accommodations at 14 Oeoe St. is neither a residential use under state law, §46-4(a) (2024), nor an existing "single-family residence" under Planning Commission Rule 9-4(u), definitions: Single-Family Residence" means a detached building designed for and/or used as the complete facility for cooking, sleeping and living area of a single family only and occupied by no more than one family. Single family residences may include uses or structures normally considered accessory to the single family facilities provided that any such uses or structures are situated on the same lot or building site and are in compliance with all requirements of any county or state regulation, statute, or ordinance. A single family shall include all persons living in a dwelling related by blood, marriage or by adoption or a group comprised of not more than five persons not related by blood, marriage or by adoption. (emphasis added). (2) The additions proposed by PL-SAA-2025-000280 are not "repair, maintenance, or interior alterations" because they are additions to the footprint of the structure and "new." (4) A statement explaining: (C) How the decision appealed from was arbitrary and characterized by an abuse of discretion or clearly unwarranted exercise of discretion: The Planning Director's decision appealed from was arbitrary and characterized by an abuse of discretion or clearly unwarranted exercise of discretion because the decision arbitrarily ignored the Special Management Area policy for managing development: HRS §205A-2(c)(7)(A): "Use, implement, and enforce existing law effectively to the maximum extent possible in managing present and future coastal zone development." The Planning Director's decision was an unwarranted exercise of discretion because it failed to address and enforce the Landowners' violations of the zoning code and other State laws at the SMA review stage. 10 The Planning Director's decision was directly contrary to the findings and purpose of Ordinance 2018-114, as well as Chapter 205A. The purpose of Ordinance 2018-114, creating Zoning Code, Section 25-4-16 thru 16.3 (STVR), is as follows: SECTION 1. Findings and Purpose. The short-term rental of residential units, as an alternative to traditional resort and hotel accommodations, is an emerging trend in the visitor industry that continues to grow in popularity. The purpose of this ordinance is to manage the impacts of these short- term vacation rentals by: 1) defining where this use will be allowed; 2) establishing provisions and standards to regulate this use; and 3) providing an avenue for an existing use deemed to be improper by this ordinance, to apply for a nonconforming use certificate that would allow them to continue to operate in a non-permitted district. (emphasis added in italics) §205A-21 Findings and purposes, reads as follows: The legislature finds that, special controls on developments within an area along the shoreline are necessary to avoid permanent losses of valuable resources and the foreclosure of management options, and to ensure that adequate access, by dedication or other means, to public owned or used beaches, recreation areas, and natural reserves is provided. The legislature finds and declares that it is the state policy to preserve, protect, and where possible, to restore the natural resources of the coastal zone of Hawaii. (emphasis added in italics) (5) A clear and concise statement of any other relevant facts: Zoning Code, Section 25-4-16.2 Prima facie evidence; short-term vacation rentals, provides: Advertising of any sort that offers a property as a short-term vacation rental shall constitute prima facie evidence that a short-term vacation rental is operating on that property. The burden of proof shall be on the owner or operator to establish either that the property is not being used as a short- term vacation rental or that it is being used for such purpose legally. (emphasis added) 11 The Standkes have the burden of proof that the dwelling unit at 14 Oeoe Street has only been rented to one single family at a time and must explain how the use of a nook off of the foyer for a single bed and use of 2 hideaway queen sofa beds in the living room as additional sleeping areas complies with their nonconforming use certificate's limitation of the use of 4 bedrooms as sleeping areas. The building and premises used for transient accommodations at 14 Oeoe St. were wrongfully certified by the Planning Department by issuance of the NUCR (2023) because the owners were operating a four-bedroom transient accommodation rental without proper permits. NUCR (2024) was wrongfully issued for a four-bedroom STVR without a change form and updated site plan or a SMA assessment application, after the May 3, 2024 effective date of Act 17. The Planning Department will process the NUCR (2025) without any Public Notice or Notice to the neighbors, so I appeal the Planning Department's inevitable decision to wrongfully certify the STRV at 14 Oeoe Street here. No single-family lives at 14 Oeoe Street, the owners never previously established a single-family use, and the owners do not verify or regulate that only a "single-family", as defined by Planning Commission Rule 9-4(u), can rent the premises. Planning Department Rule 23 administers the zoning code, Section 25-4-60- 63, Short-term vacation rentals, and does not and cannot authorize what the zoning code does not expressly authorize.5 DATE: Hilo, Hawai'i, January 2, 2026 1(-a , , R)-‘&- 5 See also, PD Rule 23-7(b) "No new STVR can obtain a Registration under this section." 12 April 11, 2025 Richard Standke 2448 E. Orangeview Lane Orange, CA 92867 VIA EMAIL Dear Richard Standke: SUBJECT: Special Management Area (SMA) Use Permit Assessment Application (PL-SAA-2025-000280) Applicant: Richard Standke Landowner: Richard & Deborah Standke Request: Return of Application TMK: (3) 2-1-018:013; South Hilo District, Hawaii This letter is in response to your Special Management Area (SMA) Use Permit Assessment Application submitted to our office on March 31, 2025. You requested approval to construct a first-floor concrete deck, a second-floor lanai, internal stairs, and to replace the roof of a single- family residence located within the SMA. Please note that this property is not a shoreline parcel. As defined by Planning Commission(PC) Rule 9-4(s),the"shoreline"refers to: "...the upper reaches of the wash of waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves. Given the property's inland location and the scope of the proposed work, which includes both interior and exterior improvements to an existing single-family residence, the project qualifies as an exempt action pursuant to Planning Commission Rule 9 and Hawai`i Revised Statutes (HRS) Chapter 205A. EXHIBIT A, pg. 1 of 2 April 11, 2025 Specifically: 1. Under Planning Commission Rule 9-4(i)(2), the term "development"does not include: o (A) Construction or reconstruction of a single-family residence less than 7,500 square feet in floor area, not situated on a shoreline parcel or one affected by waves, storm surges, high tide, or shoreline erosion, and not part of a larger development. o (F) Repair, maintenance, or interior alterations to existing structures or uses. o (0) Structural and non-structural improvements to existing single-family residences, where otherwise permissible. 2. Similarly,under HRS §205A-22(2), "development" does not include: o (A) Construction or reconstruction of a single-family residence less than 7,500 square feet, not located on a shoreline parcel or one impacted by coastal hazards, and not part of a larger development. o (F) Repair, maintenance, or interior alterations to existing structures. o (N) Structural and non-structural improvements to existing single-family residences, where otherwise permissible. Based on these provisions, your project qualifies as an exempt action under County Planning Commission Rule 9. Therefore, an SMA permit is not required, and application PL-SAA-2025- 000280 is no longer necessary. We are returning your application and will be processing a refund of your application fee. As part of the building permit application process, Planning staff will review and complete a SMA short form to complete the SMA review. If you have any questions, please feel free to contact Alukahe Kala of this department at (808) 961-8170 or via email at Alukahe.Kala@hawaiicounty.gov. Sincerely, c7ef@e y W. Dan-ow Jeffrey Darrow(Apr 11,2025 14:46 HST) JEFFREY W. DARROW Planning Director AK:rms P:\wpwin60\czm\letters\2025\pl-saa-2025-000280 return app no sma needed--ver-2.doc cc via email: Planning Fiscal EXHIBIT A, pg. 2 of 2